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Lindsey Graham Vows if POTUS, 'I’m Gonna Call a Drone and We Will Kill' Any American Thinking of Joining ISIS

Senator Lindsey Graham says really dumb things from time to time, but when I read this profile of the apparently soon-to-be GOP presidential candidate by the Federalist’s Ben Domenech, I assumed that he must have been misquoted. Sure enough, though, Mr. Domenech provides a supporting link to a Washington Post news account which reports that, this past weekend, Senator Graham asserted:

If I’m president of the United States and you’re thinking about joining al-Qaeda or ISIL [Islamic State], I’m not gonna call a judge. I’m gonna call a drone and we will kill you.

Even for those of us who recognize the government’s necessary national security powers, the question of killing Americans is an excruciatingly difficult one. It is not fit for bombast.

Our law does provide that an American citizen who joins the enemy may be treated like the enemy: lethal force may be used against him and he can be detained as an enemy combatant under the laws of war. There is an obvious reason for this: if it were wartime, and if enemy forces were conducting or about to conduct forcible operations against our troops or our citizens, we would have to be able to quell the threat with whatever force was necessary. The government clearly could not be precluded from attacking the enemy in that situation by the happenstance that one or more of its operatives was an American citizen – that would kill the innocent to protect the guilty.

That, however, is the extreme case. Given that the Constitution is not a suicide pact, our national security law must be able to respond to extreme cases.

In the “normal” case – bearing in mind that it is unusual, but far from unprecedented for Americans to join enemy forces – Americans are only targeted with lethal force if they are colluding with the enemy outside U.S. territory. Moreover, such targeting should happen only under circumstances where killing, rather than capturing, is the better military option. That is why, despite the fact that our forces have been conducting combat operations outside the U.S. for nearly fourteen years in the war against al Qaeda, only a handful of Americans have been killed or captured and detained as enemy combatants overseas.

Inside the territorial United States, we do not even target suspected alien al Qaeda operatives with lethal force, much less American citizens. Again, that is not to say the government could not do so if (a) jihadists were carrying out or about to carry out an attack on our soil, and (b) the application of lethal force was the most sensible way to stop them. But of course, even police are permitted to use lethal force in life-or-death situations, and national security forces would have greater latitude in wartime while conducting combat operations against the enemy – especially if those operations had been authorized by Congress.

Still, on American soil, our law-enforcement and national security agents do not kill when capture is a plausible option. And while there is judicial authority for the proposition that a captured American could be detained as enemy combatant and subjected to a military commission trial, the legislation on the books for current conflict does not permit American citizens to be tried by military commissions. While they could be detained as enemy combatants, they would be permitted to challenge their military detention in court, and they would eventually have to be tried, if at all, by a civilian court with all the applicable due process protections.

No one, it should be emphasized, may legally be detained in the United States, let alone killed by government use of force, for “thinking about joining” a terrorist organization – no American and no non-American.